Opinion
Opinion filed May 5, 1936.
Replevin — P.L. 1919, Provision as to Signing of Writ Held Mandatory — Invalidity of Writ Signed by One without Authority — Replevin Writ under P.L. 1910 Signed by Master in Chancery Held Void and Not Amendable — Order for Return of Property Held Justified.
1. Provision of P.L. 1919 that writs of replevin commenced under P.L. 1910 to recover possession of property unlawfully taken or detained shall be issued by a justice of the peace or out of a municipal court is mandatory and master in chancery has no authority to sign such writs.
2. A writ issued by one without authority to sign it is fatally defective and confers no jurisdiction.
3. In action of replevin to recover possession of property taken on execution issued on judgment against third person, where proposed amendment sought to perfect a suit under provisions of P.L. 1910 and writ was signed by master in chancery, held that under provisions of P.L. 1919 the process was void and not amendable.
4. In such circumstances, held that order for return of property involved was justified under provisions of P.L. 1924, since one haled into court on a void writ of replevin should be restored to the advantage which the possession of the disputed property gave him.
ACTION OF REPLEVIN to establish title to certain hay seized by deputy sheriff on execution issued on judgment against third person. Defendant filed motion to dismiss. Plaintiff filed motion to amend the process. Hearing on motions before presiding judge by agreement of the parties in vacation after April Term, 1935, Caledonia County, Jeffords, J., presiding. Motion to amend denied, and motion to dismiss granted and return of property ordered. The plaintiff excepted. The opinion states the case. Affirmed.
Shields Conant and James B. Campbell for the plaintiff.
Searles Graves for the defendant,
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
This purports to be an action of replevin in which the plaintiff seeks to establish his title to twenty tons of baled hay, which the defendant, a deputy sheriff, has seized on an execution issued on a judgment obtained by the Lancaster National Bank against one William Guptill. The writ was returned to the April term of Essex County court, when the defendant appeared specially and filed a motion to dismiss the action. Thereupon, the plaintiff filed a motion to amend the process in a way to avoid the defects relied upon by the defendant. This motion was denied as a matter of law. The motion to dismiss was then granted, and an order for a return of the property was issued. The plaintiff excepted.
Two questions of law are presented: 1. Was the process void and therefore unamendable? 2. Was the order for the return of the property justified?
1. We do not need to consider the provisions of P.L. Ch. 82, which includes our replevin law, except so far as it is embraced in P.L. 1910; for the proposed amendment only attempts to perfect a suit thereunder, and is wholly inapplicable to the other classes of replevin provided for in the chapter referred to. Nor do we need to consider the sufficiency of the proposed amendment to accomplish its evident purpose. For, however this may be, P.L. 1919 blocks the plaintiff's suit. It is therein provided that writs of replevin commenced under the provisions of P.L. 1910 shall be issued by a justice of the peace or out of a municipal court. This is a positive mandate and cannot be ignored. The process before us was not so issued. It was signed only by a master in chancery. We have, then, a writ issued by one without authority of law to sign it.
It has long been the law of this state that such a writ is fatally defective. Parker v. Parker, N. Chip. 27; P hilbrick v. Philbrick, 27 Vt. 786; Andrus v. Carroll, 35 Vt. 102, 103; Anderson v. Souliere, 103 Vt. 10, 11, 151 A. 509. Such a paper is no writ at all, a nullity, and confers no jurisdiction. Exchange National Bank v. Reid Gas Engine Co. ( C.C.A.), 287 Fed. 870; Pinkham v. Jennings, 123 Me. 343, 122 A. 873; Sherman v. Huot, 20 Mont. 555, 52 P. 558, 63 A.S.R. 645. The process being void, there is nothing to amend. Ray v. Phelps, 83 Vt. 174, 177, 75 A. 13; Perry v. Perry, 94 Vt. 487, 489, 111 A. 632; Elwell v. Olin, 99 Vt. 460, 462, 134 A. 592.
So the first of the questions submitted to us is answered in the affirmative.
2. It is expressly provided by P.L. 1924 that upon abatement, dismissal, non-suit, default, or trial, the court shall make such order for the return of the goods as is just. This provision fully justifies the order of return made by the court below. When one is haled into court on a writ of replevin so defective as to be utterly void, it is eminently just that he be restored to the advantage which the possession of the disputed property gave him. Collamer v. Page, 35 Vt. 387, is ample authority for this holding. See, also, American Elec., etc., Co. v. Harmon, 103 Vt. 263, 267, 153 A. 217.
So the second question submitted to us is also answered in the affirmative.
Judgment affirmed.